Cannon v. Commissioner of Social Security

          ORDER

          H. RUSSEL HOLLAND, UNITED STATES DISTRICT JUDGE

         Motion for Attorney's Fees

         Plaintiff Eric Maurice Cannon moves for an award of attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d).^[1] This motion is opposed.^[2] Oral argument has not been requested and is not deemed necessary.

         Background

         In this action for judicial review of the denial of disability benefits under Title II and Title XVI of the Social Security Act, the court reversed the final decision of the Commis- sioner and remanded the matter for further proceedings. More specifically, the court found that the ALJ should have developed the record as to the limitations discussed in Greg Tyler's testimony and that the ALJ's RFC was flawed because it did not adequately capture a moderate-to-marked limitation as to concentration, persistence, and pace.^[3] The court also found that there was some question as to whether plaintiff was able to do level 2 reasoning and ordered the ALJ to more fully develop this issue since the case was being remanded.^[4]The court rejected plaintiff's arguments that the ALJ had erred in giving Dr. White's opinion great weight, that the ALJ should have developed the record after Dr. Moore criticized Dr. Youngblood's and Dr. Cherry's testing methods, that the ALJ erred as to Dr. Robert's opinions, and that the ALJ erred as to Dr. Russo's and Dr. Fraser's noise opinions.^[5]

         Plaintiff now moves for an award of attorney's fees in the amount of $7, 533.21 and $16.26 in reimbursable expenses.

         Discussion

         “EAJA provides that ‘a court shall award to a prevailing party other than the United States fees and other expenses . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.'” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017) (quoting 28 U.S.C. § 2412(d)(1)(A)). Defendant does not dispute that plaintiff was the prevailing party. Defendant also does not argue that there are any special circumstances here. But, defendant does argue that fees and costs should not be awarded because its position was substantially justified.

         “The government has the burden of showing that its position was substantially justified.” Id. “‘Substantial justification means justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person.'” Id. (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “‘Put differently, the government's position must have a reasonable basis both in law and fact.'” Id. (quoting Meier, 727 F.3d at 870). “The ‘position of the United States' includes both ‘the position taken by the United States in the civil action' as well as the agency's action or inaction ‘upon which the civil action is based.'” Id. (quoting 28 U.S.C. § 2412(d)(2)(D)). “In determining whether a party is eligible for fees under EAJA, the district court must determine whether the government's position regarding the specific issue on which the district court based its remand was ‘substantially justified[.]'” Id. “While” the Ninth “[C]ircuit has been clear that when an agency's decision is unsupported by substantial evidence it is a strong indication that the position of the United States is not substantially justified, ” the Ninth “[C]ircuit has never stated that every time” a district “court reverses and remands the ALJ's decision for lack of substantial evidence the claimant should be awarded attorney's fees.” Campbell v. Astrue, 736 F.3d 867, 869 (9th Cir. 2013).

         There were two bases for remand in this case.^[6] First, the court remanded so the ALJ could further develop the record as to the limitations discussed in Greg Tyler's testimony. Second, the court remanded because the ALJ's RFC was flawed because it did not adequately capture a moderate-to-marked limitation as to concentration, persistence, and pace. Defendant argues that its position as to both of these issues was substantially justified.

         As to Greg Tyler's testimony, defendant argues that its position that any error as to this testimony was harmless was substantially justified because “[a]n ALJ's failure to adequately weigh a lay witness opinion can be harmless where the opinion is contradicted by more reliable medical evidence that the ALJ credited.”^[7] “However, when the government violates its own regulations, fails to acknowledge settled circuit case law, or fails to adequately develop the record, its position is not substantially justified.” Kirk v. Berryhill, 244 F.Supp.3d 1077, 1081 (E.D. Cal. 2017) (emphasis added) (citing Gutierrez v. Barnhart, 274 F.3d 1255, 1259-60 (9th Cir. 2001); Sampson v. Chater, 103 F.3d 918, 921-22 (9th Cir. 1996)). The court found that the ALJ erred as to Tyler's testimony because the ALJ should have developed the record more fully to address the limitations discussed in Tyler's testimony. Accordingly, the government's position as to Tyler's testimony was not substantially justified.

         As for the concentration, persistence, and pace limitation, defendant argues that the government's position was substantially justified because the ALJ's RFC was consistent with the medical opinions, in particular Dr. Moore's testimony. But, Dr. Moore's testimony on concentration, persistence, and pace plainly did not relate to whether plaintiff could stay on task for an 8-hour work day. Dr. Moore testified about plaintiff's ability to learn tasks, not his ability to stay on task. Thus, defendant's position on this issue was not substantially justified.

         Because defendant's positions on the two issues that were the basis for remand were not substantially justified, plaintiff is entitled to an award of fees and costs. The court must then consider whether the amount of fees plaintiff is requesting is reasonable.

         “Under the EAJA, the ‘court's award of attorney fees must be reasonable.'” Cascadia Wildlands v. Bureau of Land Mgmt., 987 F.Supp.2d 1085, 1091 (D. Or. 2013) (quoting Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001)). “In assessing reasonableness, courts examine the number of hours reasonably expended on the case, the reasonable hourly rate, and the level of success achieved by the plaintiff.” Petersen v. Colvin, No. 2:13-cv-01147-RFB-GWF, 2018 WL 5258617, at *1 (D. Nev. Oct. 22, 2018) (citing Sorenson, 239 F.3d at 1145, 1147). Plaintiff is requesting fees based on 41.3 hours of attorney and paralegal time and the 2018 EAJA rate of $201.60 for lawyers and a rate of $100 for paralegals. Defendant does not argue that the amount of time spent ...